Zarnow: Yes, they teach ethics to lawyers

April 18, 2013

Updated Aug. 21, 2013 1:17 p.m.

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UCI law professors, Catherine Fisk, left, and Ann Southworth, right, created the Legal Profession Course for first-year law students which will teach them about the realities of practicing law and how ethics factor into a lawyer's decision-making process. MACKENZIE REISS, ORANGE COUNTY REGISTER

UCI law professors, Catherine Fisk, left, and Ann Southworth, right, created the Legal Profession Course for first-year law students which will teach them about the realities of practicing law and how ethics factor into a lawyer's decision-making process. MACKENZIE REISS, ORANGE COUNTY REGISTER

Suppose you, as a lawyer, are the compliance officer for a manufacturer.

And suppose that firm, a huge employer, releases toxic substances into the environment during its manufacturing process. As its lawyer, and a person who tracks the realities of environmental prosecutions, you know the industry enforcement agency is overworked and consequently tends to bring cases only against firms that pollute at twice the legal limit.

If you tell your client about the agency's enforcement practices, are you in essence advising your client how to get away with polluting? But if you don't tell, are you not doing the job you were hired to do?

This is just one of the hypothetical situations law students at UC Irvine try to pin down as they wrestle with ethics during an innovative first-year course. It's their only class that studies the legal profession itself.

"We want to teach students how to be a good lawyer in the broadest sense of 'good,'" explains law professor Catherine Fisk, who developed the new curriculum with professor Ann Southworth.

Some rules of conduct are clear, they say, but others are ambiguous.

Is a good lawyer always good?

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Fisk and Southworth stress that this required course they teach is more than an ethics class for lawyers. More broadly, it teaches students about the various types of law practices and the opportunities and challenges of each.

Part of the course is teaching how ethics fits into a broader context.

The workplace realities students will encounter will depend on how and where they choose to practice law. In the class, they hear from about 35 practitioners across a wide spectrum of legal careers.

"They get a clear sense of how a particular opportunity might mesh with their own values," Southworth says.

A 2007 study by the Carnegie Foundation for the Advancement of Teaching faulted law schools on this. It said schools teach legal skills just fine, but they don't teach conduct in the context of the real world.

"They need to understand the 'practice context,'" Southworth says.

They need to learn how to navigate not only the law they practice, but also the ethical implications of their choices – and ultimately of how they choose to act.

"The ways in which generally good people find themselves making decisions that are between illegal, unethical or unwise," Fisk says, "are not just that they don't know the rules or the difference between fraud and hard bargaining.

"People feel constrained by norms of their work culture."

In each setting – public-interest lawyer to private counsel – a lawyer will feel "pressure points."

Basic rules governing client confidentiality and conflicts of interest are clear – but how to apply them to the real world is not always. Lawyers will feel a pinch.

Fisk says the difference between "a competent lawyer and a superb lawyer is teaching students what to do when there is a gray area. ... We are not aiming merely at competence; we're aiming for excellence."

Students start law school green as corn: There is the law and you learn it.

But how do you choose which clients to represent?

How do you handle conflicts between law and conscience?

The class helps ripen their thoughts.

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The course opens with a study of the role of lawyers: their obligations to their clients and how to discharge them.

"It's not a simple question," Fisk says. "Lawyers often think it is, but it's not."

Southworth says the rules of conduct can be quite vague.

"How do you exercise discretion?"

That's why the course includes role playing.

"They step into the shoes of a lawyer and try to imagine everything a lawyer faces," Southworth says. "We raise ethical issues in the practice contexts where they are most likely to arise."

There are ways lawyers might be tempted to behave – such as being excessively aggressive or lying during negotiation. What are the rules that govern them?

For example, how does a prosecutor decide who to charge and when to plea bargain?

A simulation about settling a wrongful-death claim raises issues about how candid attorneys should be during a negotiation.

Another involves associates who object to their firm's decision to represent Republican congressmen in litigation challenging the Federal Defense of Marriage Act. A different simulation questions how to define "public-interest work" to determine eligibility for grant funding.

The hard part is not teaching the rules that are clear, the professors say. The hard part is teaching the nuanced strategies that weigh legal obligations (which can be ambiguous or conflicting) vs. consequences.

Suppose your client confesses to a crime for which someone else was convicted. The confession is confidential – but does a lawyer have any alternatives to silence?

Suppose your client lies on the witness stand to protect her parents, who entered the country illegally.

There is a rule to correct perjury under oath, Fisk says, but related rules cover how the lawyer should handle the problem, and students need to know that.

"The reality is that if something is prohibited, doesn't mean that people don't do it," Fisk says. "Lawyers, like everybody else, need to understand the temptations to ignore a clear rule – and the risks."

Southworth notes that students need to know how to implement rather vague language in a sensible way: What does the rule require, what are the options, and what are the difficulties?

In a profession that concerns itself with the letter of the law, these students consider gray areas that could be right or could be wrong. That seems incredibly worthwhile.

"Spending time on ambiguity, that's teaching judgment and problem solving," Fisk says. "That's the hardest part of education."

The course aims for nothing less than teaching students how to have a successful, rewarding and responsible law career – because, in the end, they will make their own choices.

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